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Jason Dzubow on Political Asylum


  1. Fraud and Asylum

    A recent report from Ireland found that almost two thirds of asylum seekers who claimed to be from Somalia were lying.  The investigation found that the "Somalis" were from other countries, such as Tanzania, Kenya, and Yemen.  Apparently, some of the asylum seekers were found out based on language or a lack thereof; others had previously applied for visas to the UK using different nationalities.  There may be some reason to doubt whether these techniques for outing "Somalis" are valid.  For example, some Somali nationals may have been refugees for many years, raised in other countries without knowledge of Somali languages.  Others may have used false passports from other countries to travel to Europe.  Nevertheless, the high percentage of cases that are likely fraudulent presents a problem for the "system" and for those who represent asylum seekers. 
    Of course, the problem is not confined to Europe.  In 2007, the U.S. Embassy in Ethiopia issued a cable (I have not been able to find it online) entitled: Report on fraud trends in Ethiopian asylee claims: A guide for DHS adjudicators.  The cable talks about "following to join" cases where an alien has been granted asylum in the United States and has filed a form I-730 for his relatives to join him in the U.S.  From August 2005 to May 2006, the Embassy reviewed 1,449 following-to-join cases, which represented 288 asylum grants in the United States.  The Embassy writes that "Almost every [following-to-join] interview at Post uncovers information that calls into question the petitioner's original claim."  In addition, the Embassy has found that "more than 75 percent of documents investigated were fraudulent" and consular officers "suspect that the fraud rate is well over 50 percent."  Again, there may be problems with the Embassy's methods of investigating fraud, but the cable certainly presents evidence of a problem. 
    The U.S. Embassy in Cameroon has issued a cable similar to the Ethiopian cable.  It states that asylum claims have increased dramatically since 1992.  The Embassy knows of no corresponding increase in political problems, though the economy has gotten worse, leading to the conclusion that many asylum seekers are economic migrants (the State Department Report on Human Rights conflicts somewhat with this view, listing human rights abuses such as torture, arbitrary arrest, and life-threatening prison conditions).  The Embassy also reports that Cameroonians have been detained entering the United States with all sorts of fake documents that could be used to create fraudulent asylum claims.  Relatives following to join frequently know nothing about the asylees' political activities or persecution.  As a result of this fraud, non-immigrant visa refusal rates have increased from 35% in 2001 to 60% in 2004.  Further, the Embassy complains that fraudulent applications and following-to-join applications have dramatically increased its workload.  It recommends that Cameroonian asylum cases be viewed skeptically. 
    Other evidence is more anecdotal.  A recent report from the blogosphere-I cannot vouch for the report's credibility-indicates that an Ethiopian diplomat at the Embassy in Washington, DC quit his job, claimed asylum, and then returned to work at the Embassy as a public relations officer.  He was even listed on the Embassy website.  The report states that the diplomat's asylum claim was false, and urged the U.S. government and the Ethiopian government to investigate.  
    The problem of fraud presents a dilemma for attorneys who specialize in asylum and a challenge to the "system." 
    Attorneys who specialize in asylum have generally entered the field to assist those who genuinely fear persecution (we certainly don't specialize in asylum for the money!), not to help facilitate fraud.  However, for the most part, we can't know which cases are genuine and which are not, and it's sometimes dangerous to judge.  I remember one Ethiopian woman whose case I doubted.  We won, and a few months later she returned to my office and asked whether I could help her find a doctor.  Ever since her detention and beating, she said, she had been suffering pain on one side of her body.  Although I don't know whether this was true or not, she had no reason to lie.  Experiences like this make me cautious about judging my client's veracity.  Instead, it's better to represent my clients to the best of my ability and to let the Immigration Judge decide the case.
    The problem of fraud also presents a challenge to the legal system.  Our country has-I think quite properly-taken a generous approach to asylum.  We would rather allow some fraudulent cases to succeed than turn away genuine asylum seekers.  Of course, if fraud becomes too pervasive, it might cause us to re-consider how we evaluate asylum claims.  The Australia government recently initiated a six-month freeze on processing asylum applications filed by Afghani and Sri Lankan asylum seekers who arrive by sea.  The system was becoming overwhelmed by applicants, and the government reacted with a heavy hand.  Such a broad brush approach is questionable under international law, and would obviously affect legitimate and illegitimate asylum seekers. 
    So what can be done to reduce fraudulent asylum claims?
    The U.S. Embassy in Cameroon suggests that DHS check asylum applications with records obtained at the Embassy to determine whether family members listed on the asylum form were also mentioned at the Embassy.  This would avoid the problem of asylum seekers "adding" family members in order to bring them to the U.S. after they win asylum.  If "false family members" could not follow to join, the incentive for seeking asylum might be reduced. 
    Also, more generally, documented information at the Embassy could be compared with information in the asylum application.  Theoretically, this should happen already, but DHS has limited resources, and this method seems to have limited value, as most biographical information is consistent between the Embassy and the asylum application.
    In many cases, friends and relatives in the home country submit letters in support of an applicant's claim.  Such people could be called to the Embassy for questioning.  It is more difficult to create a fraudulent case if people in the home country are required to testify about the claimed persecution.  Of course, this would have to be done while maintaining confidentiality, but this should be possible given that such people already know about the asylum claim (having written letters in support of the claim).
    Another option is to identify attorneys and notarios who prepare claims deemed suspicious.  Such people should be investigated and, if evidence of fraud is uncovered, prosecuted.  This, to me, is the easiest and most effective solution.  The DHS attorneys generally know who is producing and/or facilitating fraudulent claims.  Why not send an undercover investigator posing as a client to the suspected attorney?  If the attorney suggests that the "client" engage in fraud, the attorney could be charged with a crime (that is exactly what happened to a Washington State couple who helped create fraudulent asylum cases).  Such tactics would reduce fraud by eliminating the purveyors of fraud and by deterring others who might engage in such practices.
    The trick is to reduce fraud without preventing legitimate asylum seekers from gaining protection.
  2. A Short “Wish List” for the Refugee Protection Act

    The RPA provides important new protections to asylum seekers, particularly the most vulnerable asylum seekers such as people who are pro se or detained.  However, I can think of a couple important issues that are not addressed.  Below are some problems that my clients have faced over and over again, and some suggested solutions.
    The Asylum Clock 
    Within the circle of attorneys who represent asylum seekers, the "asylum clock" may be the most discussed problem in need of resolution (Penn State Dickinson School of Law recently issued a comprehensive report about the asylum clock). When a client files an affirmative application for asylum, the clock starts to run.  When the clock reaches 150 days, the applicant may file for an Employment Authorization Document ("EAD").  The EAD is very important because it allows an asylum seeker to work legally in the United States, and serves as a form of identification.  The problem is, if the alien does anything to delay his case, the clock stops, and generally will not re-start.  So, for example, if an alien is represented by counsel, and the attorney cannot accept a particular court date due to a conflict, the clock stops and the alien never receives an EAD.  Also, when an unrepresented asylum seeker asks for more time to find an attorney, the clock stops.  It is usually impossible to restart the clock.

    The broken asylum clock isn't even correct twice a day
    Aliens who enter the United States without inspection or aliens who file for asylum after one year in the U.S. do not have a clock, and it is usually not possible for them to obtain an EAD.
    Thus, many asylum seekers endure one to two year waits (which are common in Immigration Court) without the ability to work legally, and without any form of identification.
    One possible solution to this problem is to give the Immigration Judges more authority to grant an EAD.  If the alien is deliberately causing delay in his case, the IJ should not grant an EAD.  But where the delay is not caused by the alien or is reasonable, the alien should receive an EAD.
    Employment Authorization Document
    A second area in need of reform is the EAD itself.  Aliens granted asylum, withholding of removal, or relief under the UN Convention Against Torture ("CAT") are entitled to an EAD.  The EAD is valid for one year and must then be renewed.  The validity period of the EAD should be changed to at least two years.
    Aliens with asylum generally apply for their lawful permanent residency (i.e., their green card) after one year.  However, aliens who have withholding of removal or CAT relief are not eligible to become LPRs.  Such aliens must renew their EADs every year.  This can be problematic for a number of reasons.  First, the cost to renew is $340.00 every year.  For aliens with limited means, this sum may be prohibitive.  Second, assuming the alien remembers to file on time, the new EAD may or may not arrive prior to the expiration of the old EAD.  If the new EAD does not arrive in time, the alien's job might be jeopardized, as employers will often terminate employees without a valid EAD.  Third, many states link the driver's license to the EAD, so when the EAD expires, the driver's license expires.  Even if the EAD arrives on time, there may be a delay in renewing the driver's license.  The alien could be left without a valid driver's license (or any valid ID).
    These problems would be greatly reduced if the EAD were valid for two (or more) years, instead of one year. 
  3. Advice from a Court Interpreter

    Without interpreters, the Immigration Court system could not operate.  One of the best interpreters I've worked with is Maria Raquel McFadden.  She is a freelance business, legal, and immigration interpreter with 10 years experience.  She has interpreted in various forums, including courts, immigration interviews, depositions, and business meetings.  She is registered with the State of Maryland and can be reached at: (202) 709-3602 (office) or (202) 360-2736 (cell).  Her email address is  Ms. McFadden offers some advice on how best to utilize an interpreter:
    Many people who are scheduled for interviews before the asylum office or immigration court speak little or no English. Often they have never used the services of an interpreter before.
    Being aware of the function of an interpreter can help the process go along more smoothly. The interpreter's role is to remove the language barrier to the extent possible, so that the access to justice for a person with non- or limited English skills is the same as that of similarly situated English speakers for whom no such barrier exists.

    Nicole Kidman makes interpreting cool
    When speaking through an interpreter, people should continue to speak directly to each other.  The interpreter serves merely as a mouthpiece. Interviews and conversations should flow as if the interviewer/judge, lawyer(s), and the asylum applicant are the only ones participating. Experienced interpreters know to use only the third person when referring to themselves.
    In court, it is the job of the interpreter to interpret the questions asked into the alien's language and interpret the answers into English.  At an interview, the interpreter will likewise interpret all questions and answers given.
    Some interpreters are better than others and it's necessary that both lawyers and clients learn how to best use an interpreter. Here are some tips to keep in mind:
    1. Before the interview, the asylum seeker and interpreter should talk to each other to make certain that they speak the same dialect and/or understand each other.
    2. Try to speak in short, very clear sentences. This will help because it can be difficult for an interpreter to accurately interpret more than a couple of sentences at a time.  
    3. Look at and speak directly to the person to whom you are responding. Do not address the interpreter.
    4. If you do not understand the interpreter, notify the judge/interviewing officer immediately.
    5. Remember that the interpreter must keep all the information he/she learns during the interview/hearing confidential and may not share it with anyone. 
    One should bear in mind that when an asylum-applicant goes before a judge, it is the court that will be make an interpreter available. However, asylum applicants must provide their own interpreter when interviewing before USCIS or the Asylum Office.  When hiring one's own interpreter, one should take into account that a person related to the asylum-seeker may not interpret for them. It is better to have a neutral/disinterested party. The interpreter must take his/her government issued ID and be prepared to stay the entire duration of the interview. Sometimes, appointments are delayed and all parties should be prepared for long waits. 
    By taking all the above factors into consideration, the asylum interview/hearing can be more manageable when working with an interpreter.
  4. Two Unpublished BIA Victories for Mentally Ill Respondents

    Here are two recent decisions from the BIA involving mentally ill defendants who faced persecution in their homelands:
    (1) Professor Muneer Ahmad of the Yale Law School Worker & Immigrant Rights Advocacy Clinic reports that the BIA has reversed a decision by the IJ denying Convention Against Torture relief to a mentally ill Haitian man.  The Haitian man argued that he would be jailed in Haiti and that he would not receive his medication.  Without medication, the man would not be able to comply or adapt to the conditions in prison.  As a result of this non-compliance, he would be beaten and tortured in prison.  The BIA found that it was more likely than not that he would be tortured.  The Board's decision reversed the IJ and remanded the case for a grant of CAT relief.  The student attorneys on the case were Alice Hwang, Dale Kotchka-Alanes, Rebecca Scholtz, and Matt Vogel.
    (2) Attorney Bob Jobe represented the respondent in another unpublished BIA decision.  In that case, the Board originally denied the claim, but the Ninth Circuit remanded to assess whether "Peruvians with serious chronic mental disabilities" constitutes a particular social group.  On remand, the BIA held: "Mental disabilities are clearly immutable characteristics in that those suffering from them cannot change their disability. Furthermore, people with serious and chronic mental disabilities are socially visible and the evidence of record establishes that [in Peru] they are often discriminated against and treated in an inhumane manner." 
    Mazel Tov to all on these successful outcomes.
  5. The Refugee Protection Act and Improved Access to Legal Services

    This is the fifth part in an ongoing series about the Refugee Protection Act.  The RPA contains many provisions to improve legal services and legal access for asylum seekers.
    The root cause of many problems in the asylum system is that aliens are not provided with counsel.  According to TRAC, a website that gathers statistical information on immigration matters, 86% of unrepresented asylum seekers are denied asylum in Immigration Court.  That compares with an overall national average denial rate of 57% (this figure includes represented and unrepresented asylum seekers in Court).  Although I have not seen any statistics, I imagine that the success rate of detained asylum seekers is even lower--such aliens have limited access to attorneys and resources to help them with their applications.  The RPA would improve this situation.
    The RPA provides improved access to attorneys in several ways.  First, the new law allows the Attorney General or his designee (presumably the Immigration Judge) to appoint counsel "if the fair resolution or effective adjudication of the proceedings would be served by appointment of counsel."  Currently, IJs can work with local non-profits or AILA to find pro bono counsel for certain cases.  This method of procuring counsel is ad hoc, and depends on the availability of pro bono counsel.  The RPA would improve the situation, but would still give the IJ (an interested party) the authority to decide whether an attorney is needed.  Ideally, any alien who expresses a fear of return should be screened by an independent reviewer to determine whether an attorney is necessary.  The RPA as written does not provide for an independent decision concerning the need for counsel.
    Second, the RPA provides detained asylum seekers with improved access to legal services and resources.  It requires an on-site law library at every detention facility, free access to legal research and correspondence, including computers and printers, access to confidential meeting space to confer with legal counsel, and reasonable access to telephones to call legal representatives without charge.  The RPA also prohibits the transfer of a detainee if it would impair an existing attorney-client relationship.  Under the RPA, all new detention facilities must be located within 50 miles of a "community in which there is a demonstrated capacity to provide free or low-cost legal representation," and by January 2014, all detention facilities must comply with this location requirement. 
    Third, the RPA establishes a National Legal Orientation Support and Training Center to "ensure quality and consistent implementation of group legal orientation programs nationwide."  The Center will provide training to non-profit agencies that will, in turn, provide legal orientation and "know your rights" presentations to detained aliens.  The RPA would also provide grants to the non-profit agencies.
    By increasing access to counsel for detained and non-detained asylum seekers, the RPA would help protect legitimate asylum seekers by ensuring that their claims are properly prepared and presented for adjudication.
    Finally, Some Media Attention
    The RPA has been largly ignored by the media.  Last week, Josh Shahyar had an article in the Huffington Post, "The Immigration Bill No One Is Talking About."  Hopefully the article adds some momentum to the push for this worthy piece of legislation.
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